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Supreme Court aligns with trial court in dog-attack case

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The Indiana Supreme Court has affirmed a trial court judge’s finding that the city of Evansville and its animal control division are not liable in a dog attack that seriously injured a boy.

Siding with Vanderburgh Circuit Judge Carl A. Heldt, the Supreme Court found that the Indiana Court of Appeals was in error when it reversed Judge Heldt’s decision.

In the case of Misty D. Davis v. Animal Control - City of Evansville, et al., No. 82S01-1102-CV-77, Misty Davis filed a complaint against the city and its animal control division in 2007, two years after a Rottweiler attacked her six-year-old son. Davis claimed that animal control “was well aware of this dog’s violent propensities based upon numerous prior attacks by this dog,” yet failed to protect her son from the animal.

The trial court found that the city defendants were entitled to law enforcement immunity under the Indiana Tort Claims Act, which provides immunity to governmental entities for any loss resulting from the failure to enforce a law. Davis appealed that decision, claiming law enforcement immunity did not apply because the complaint is not based on the defendants’ failure to enforce the law but rather on their failure to follow their own procedures for determining whether an animal is dangerous as set forth in the Evansville Animal Control Ordinance. The Court of Appeals majority agreed. Judge James Kirsch dissented.

In reversing the trial court’s decision, the COA relied on the Supreme Court decision in Mullin v. Municipal City of South Bend, 639 N.E.2d 278 (Ind. 1994), limited on other grounds, Benton v. City of Oakland City, 721 N.E.2d 224, 231 (Ind. 1999). In that case, the Supreme Court considered whether the failure of an emergency dispatcher to send an ambulance to a house fire despite a department policy stating that medics would be dispatched to all fire calls where someone was thought to be inside fell within the parameters of law enforcement immunity.

In Mullin, the Supreme Court concluded that the scope of  enforcement is limited to activities in which a governmental entity or its employees compel or attempt to compel the obedience of another to laws, rules or regulations, or sanction or attempt to sanction a violation thereof. Because the dispatcher in Mullin was not doing any of those things, the claim was not barred by the law enforcement provision.

“This was not the correct way to apply Mullin,” the Supreme Court stated of the COA reversal in Davis. “Mullin did not hold that there was no law enforcement immunity because city employees did not follow procedures; it held that there was no law enforcement immunity because in responding to a fire emergency, the city was not engaged in law enforcement.”

The Supreme Court stated that a dog with the same name had attacked someone before Davis’ son was attacked, but the owner’s address and name were different in both cases; therefore, it’s not certain whether the dog previously picked up and held temporarily by the animal control division is the same one that attacked Davis’ son.

Holding that the plaintiff's claim does constitute an allegation that the city defendants failed to enforce the law, the Supreme Court ruled Davis is not entitled to collect damages from the defendants.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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